Callen v. Sherman’s, Inc.

Sherman’s, Inc. (defendant) leased a store from Pard Realty (Pard) (plaintiff). After Sherman’s failed to pay rent, Pard filed a complaint seeking the amount due under the lease and engaged a municipal constable to distrain, or seize, the goods in Sherman’s store by padlocking the premises. Sherman’s counterclaimed against Pard’s breach-of-lease claim, arguing that the distraint constituted an unconstitutional deprivation of property by the state without due process. The court dismissed Sherman’s constitutional argument on the grounds that the distraint was not a state action and awarded Pard damages for unpaid rent. The appellate court affirmed the damages but reversed the dismissal of Sherman’s constitutional argument, holding that the state statutes granting a landlord the right to distrain goods for unpaid rent were unconstitutional. Under the distraint statutes, sheriffs and constables were required to assist in the execution of a distraint action if asked. Neither notice or a hearing was required before distraint. Pard could distrain and hold a public sale of the distrained goods without the involvement of a judge. The statutes provided for an action to recover goods after distraint but also imposed double costs against a party that pursued an unsuccessful wrongful-distraint action. On remand, the trial court found that the distraint constituted state action and that Sherman’s had not received due process. Pard appealed.